The Law of Disorder

EARLY CAREER FELLOW: APRIL 2016 – FEBRUARY 2017

Illan rua Wall is an Associate Professor at the Warwick Law School. He holds a BCL from University College Cork, an LLM from the National University of Ireland, Galway and a PhD from Birkbeck College, University of London. He has published on critical legal theory, theories of constituent power, the Arab Spring, protest and transitional justice in Colombia, theories of human rights and revolt, and new Andean constitutional apparatuses.He is the co-founder of the blog criticallegalthinking.com.

His ISRF project works on the relation between law and disorder. Legal concepts are usually framed as being a part of the everyday social order. However, in moments of disorder we find the legal system stripped of its conventional architecture: the monopoly of the use of force, the control of territory and populations, the authority of the legislature, the constitutional unity of the people, or law’s claim to neutral universal protection. In moments of disorder, law as an institution and a basis of the social order is questioned. The problem with extant ideas of the law of disorder is that they start from law’s ‘normalcy’. The ‘Law of Disorder’ reverses the priority wherein law is the horizon of meaning for understanding disorder. Instead it places the emphasis on thinking from within the ‘disordered’ event, attempting to see beyond the conventional legal understanding of constitutional ‘origins’, criminal prosecution and balancing of rights.

Abstract

This project will pioneer the new field of the law of disorder. Legal concepts are usually framed as being a part of the everyday social order. However, in moments of disorder we find the legal system stripped of its conventional architecture: the monopoly of the use of force, the control of territory and populations, the authority of the legislature, the constitutional unity of the people, or law’s claim to neutral universal protection. In moments of disorder, law as an institution and a basis of the social order is questioned. The problem with extant ideas of the law of disorder is that they start from law’s ‘normalcy’. The ‘Law of Disorder’ reverses the priority wherein law is the horizon of meaning for understanding disorder. Instead it places the emphasis on thinking from within the ‘disordered’ event, attempting to see beyond the conventional legal understanding of constitutional ‘origins’, criminal prosecution and balancing of rights.

During the one-year ISRF fellowship, rather than beginning with war, the state of exception or transitional justice (all points of interest for ‘the Law of Disorder’), the project will focus on the question of protest crowds. These reveal essential questions about law and social order. The project will analyse how the protest crowd generates an atmosphere in the space it occupies. From the square or park, sometimes this atmosphere begins to seep outwards, gradually settling upon the city or even the state (as a sense of crisis). Take for example the atmosphere of Madrid or Athens at the height of the Indignados occupations of 2011/2. In this new atmosphere, there is a revision of the type of political settlement that is realistic and possible, evidenced in Greece by the emergence and success of Syriza, the anti-austerity party which grew from the sustained pressure of the protest crowds.

The Research Idea

The research has one key thesis: We can understand the ability of protest crowds to effect political and legal change through their generation of an atmosphere in which political and constitutional possibilities are revised. There are three elements which the project will investigate: (1) that protesting-crowds form a crucial point of ‘politics out of doors’. As such we need to think about crowd dynamics, particularly in the face of attempts by the police to deter them; (2) that crowds generate atmospheres of refusal, disclosing a point of dissatisfaction not mediated by traditional political and legal modes of resolution; and (3) that this atmosphere of refusal can have significant constitutional and political effects. Compare the quick effect of the refusal by crowds in Tunisia at the start of the ‘Arab Spring’ to the slow effect of the crowds in Puerto del Sol (Madrid) or Syntagma Square (Athens). While the former crowd refused Ben Ali’s regime of control (Wall 2012, Hibou 2012), generating a constitutional rupture, the latter crowds incubated the new anti-austerity parties of Podemos and Syriza. What is crucial to these examples is the manner in which the crowd grows, gathers momentum and generates an intense affect that binds people to the cause. This atmosphere emanates initially from the intensity of the crowd’s affect, but gradually it comes to settle upon the city. The atmosphere of refusal (of a regime of control in Tunisia or austerity in Greece) makes counter-ideas and practices that were once unrealistic, suddenly appear possible.

Background

This project comes from a dissatisfaction with two responses to disorder. For instance, after the London riots, there was a call in the UK to retool law, to develop new modes of control given the threat of social unrest. This led to legislative and policing review, in particular with social scientists overhauling the public order policing training. Those who opposed these new measures emphasised the importance of the right to protest and the dangers of ever more efficient police control of protest crowds. However, both sides of this debate have focused on the legal and policing reaction to public disorder. This project refuses the simple turn to law as the framework for understanding and dealing with disorder.

One of the most important of the recent theoretical frameworks that is used to understand protest-crowds is the state of exception. Since 9/11 there has been an extraordinary production of literature on the subject. In critical social science, political and legal theory, the state of exception has been an important way of understanding the recent protest crowds from Occupy to Ferguson (Gordillo 2011, Agamben 2014). This project both supplements and challenges such a focus as it seeks to undo the totalising effects of some versions of the norm/exception relation. I am particularly well placed to undertake such a project, having published (in the context of human rights) on critiques of those who continually turn to law for ever new forms of control, and the dynamics of exceptionality in the Arab Spring.

The Focus

There has been a relative increase in crowd phenomena since 2008, from the ‘Arab Spring’ and Spanish or Greek Indignados to the Occupy movement in New York, London and recently in Hong Kong. Without valourising crowds, the project addresses two real-life problems: (1) the regular failure to understand how crowds operate, and (2) the tendency of many to misunderstand how crowds change political and legal orders. To illustrate the first point: Writing in the House of Lords decision in Austin (2009), Lord Justice Hope imagined crowds as being made up of those who let their bestial human nature express itself, and those who kept the bounds of civilisation intact. The essentialism of the distinction between the civilised and the bestial has long been discredited as an understanding of crowds (McClelland 1989). Yet in this crucial case on the police tactic of ‘kettling’, the misconception determined the framework in which the court made its decision. To illustrate the second problem that motivates this project: After Occupy Wall Street was evicted from Zucotti Park, many asked what effect it had on the US political system. For these people, the model for the political effectiveness seemed to remain the storming of the winter palace, however, this idea of power is long outdated (Foucault 1980, 1995). The project brings established critical ideas on power and authority to bear on the legal and political discussion of crowds.

Theoretical Novelty

The field of the ‘Law of Disorder’ is entirely novel. While various different types of disorder have well developed literatures (war studies/humanitarian law, the state of emergency, etc.), there remains a failure to draw them together in the politico-legal context. By focusing on the protest crowd, the project will launch the field with a distinctive tone.

The protest crowd requires two strands of analysis: its concrete being-together and the manner in which it generates atmospheres which may settle upon the city. The first strand is very well established (Le Bon 1903, Freud 2011, Canetti 1962, Borch 2012, Blackman 2012, Douzinas 2013). The project will build upon the recent developments in affect theory (Massumi 2004, Ahmed 2004, Thrift 2007, Gregg & Seigworth 2010), combining them with the work on community by Nancy (1991, 1997). It discovers an intense bodily communication that connects the participants in the crowd, while insisting that the crowd itself can never be whole or complete.

Few have understood the significance of atmosphere in general except perhaps Böhme (1993) and Sloterdijk (2011). Until last year (Sloterdijk 2014, Philippopoulos-Mihalopoulos 2014) there were no full works in English that discussed political and legal atmospheres. Furthermore, there are still very few explicit engagements with the atmosphere of crowds. The project addresses this, drawing together the established field of crowd theory with the emergent field of atmospheric analysis. There is novelty in the three elements, however the development of atmosphere as a way of discussing politico-legal change is particularly important and novel.

Methodology

The analysis of atmosphere requires a distinct method, and the difficulty of this is only intensified by crowd atmospheres. This project will develop a novel method, transcending subjective accounts and objective (spatial, environmental, architectural and object-oriented) analyses to understand the sense of atmosphere. The project will look to various different experiential accounts of crowd atmospheres, particularly using ethnographic studies and the analyses that emerge from social psychology’s ‘elaborated social identity model’ (Stott 2012). These will be matched with: a spatial analysis of crowds, taking my cue from Canetti (1962) who insisted that crowds were spatially determined; an environmental and object-oriented account of atmosphere gleaned from the extensive marketing literature on supermarket and shopping mall design; and finally the architectural analysis of atmosphere particularly in stadium and theatre design. When combined with the work of Jean-Luc Nancy’s philosophy of ‘sense’ this diverse literature gives a surprisingly coherent picture. The framework that emerges will be tested out in semi-structured interviews with participants from Occupy Wall St, Occupy Oakland, and with the Greek and Spanish Indignados who occupied Puerto del Sol and Syntagma Square.

This novel method is situated within a theoretical tradition of ‘critical legal studies’, which combines a sustained and rigorous understanding of continental philosophy with the particular questions and problems that law gives rise to. Critical legal studies gives a starting point that remains suspicious of law’s self-aggrandising claims, while rigorously engaging with the manner in which it manifests itself concretely.

Workplan

I would take up the fellowship from January 2016, and hold it for eleven months. There will be four field trips. I will travel to Madrid and Athens to engage with a number of the occupiers of Puerto del Sol and Syntagma Square. I have good contacts in Syriza, and some initial contacts with Podemos. I will travel for one week to New York to engage with Prof Andrew Arato (New School), and to undertake an analysis of Occupy Wall St. I will then continue to California, where I will work with Prof James Martel (San Francisco State University), a Benjamin scholar and anarchist political theorist. While there I will engage with a number of the Occupy Oakland protestors.

I will submit a book proposal to Edinburgh University Press in the summer 2015, before the commencement of the fellowship. Three (of eight) chapters are now nearing completion, particularly the chapters concerning the first part of the project on the understanding of crowds. I will complete a first draft of the book by the end of the fellowship. I will also publish my findings on atmosphere in a major social/political theory journal (for instance Theory, Culture & Society, Social Research, or Constellations). I will continue to publish my research on a number of different blogs and magazines, particularly criticallegalthinking.com, of which I am a founding editor. This is an excellent site to disseminate research, with monthly views in excess of thirty thousand.

Outcome

Beyond the ISRF fellowship, my work on crowds and atmosphere will continue with an inter-disciplinary article that focuses on crowds and gender. Starting with the reports of sexual violence at protest crowds in Egypt, New York and Hong Kong, it will critically analyse the early crowd theorists’ idea that crowds force the violent release of libidinous energy. In the medium term, I will continue to develop the ‘Law of Disorder’ framework into questions of sovereignty, exception, transitional justice and other themes to supplement that of the crowd. I will develop a journal article which summarises the importance of the new field for a major UK law journal such as the Modern Law Review or the Oxford Journal of Legal Studies. This will form the center-piece of a monograph for Cambridge University Press’s Law in Context series, bridging the gap between my ‘Law and Disorder’ undergraduate module (run for the first time in the Autumn term of 2014), and the monograph that I will complete during this fellowship.

The ultimate outcome is the establishment of the ‘Law of Disorder’ as a distinct field of research. As evident from the first part of the project on crowds and atmospheres, such a field will be thoroughly interdisciplinary. It seeks to discover systemic connections obscured by traditional disciplinary commitments. Thinking theoretically and practically about what happens to law in moments where its apparent solidity is shaken.